What Can and Cannot Be Addressed in a Prenuptial Agreement?

 Posted on October 06, 2023 in Illinois Family Law

A prenuptial agreement, commonly known as a "prenup," is a legal contract that a couple will create and sign before they get married. These agreements may outline how certain financial matters will be handled in the event of divorce or the death of either spouse. While a prenup can provide many benefits, it is crucial for a couple to ensure that it will be valid and legally enforceable. Including terms in a prenuptial agreement that violate the law could potentially result in the entire agreement being found to be invalid. When planning to get married and determining what should be included in a prenup, it is important to work with an attorney to ensure that the appropriate language is used and that both parties understand how the terms of the agreement will affect them.

What Can Be Addressed in a Prenuptial Agreement

In general, prenups are limited to making decisions about financial issues, including the income, assets, and debts of each party both before and after they are married. A prenuptial agreement may address:

• Asset division: A couple can specify how assets that will be acquired during their marriage will be divided if they choose to get a divorce or legal separation. These assets may include real estate properties, investments, businesses, bank accounts, vehicles, personal property, and any other valuable possessions. By detailing how property will be divided ahead of time, a couple can help avoid conflict and uncertainty in the event of a divorce.

• Safeguarding separate property: If one party enters the marriage with significant assets or owns property that they want to protect in the event of divorce, they can use a prenup to ensure that these assets will remain separate from marital property. By identifying separate property and stating that it will remain in the possession of the original owner, these provisions can be used to protect a business, family wealth, or other valuable assets.

• Debt responsibility: A couple can use a prenup to determine who will be responsible for certain debts acquired before or during their marriage. This can help ensure that a spouse will not be burdened with debts their partner brought into the marriage. It can also make sure that a spouse will be responsible for paying their own debts, such as student loans or credit card debts for purchases made for their sole benefit.

• Spousal support: If there is a difference between the incomes earned by partners, one spouse may seek alimony in the event of a divorce. Because this can often be a contentious issue, a couple may choose to decide how it will be addressed ahead of time in a prenuptial agreement. Their agreement may specify whether spousal maintenance will or will not be awarded, and it may also detail how much support will be paid and how long these payments will last after a divorce or separation.

• Inheritance rights: A prenuptial agreement may detail how certain assets will be distributed to heirs upon the death of a spouse. This can help protect assets that a person intended to use to provide for the needs of their children or other loved ones. It can also help avoid uncertainty among family members about who should receive different assets after a marriage ends through divorce, legal separation, or death.

What Cannot Be Addressed in a Prenuptial Agreement

Since a prenup will typically be limited to addressing financial matters, other types of issues related to a couple’s marriage or divorce generally cannot be included in an agreement. Specifically, a prenup cannot include terms related to:

• Child custody and child support: Issues related to a couple’s children will be determined based on what a family court judge deems to be in the children’s best interests. Since this cannot be determined ahead of time, these decisions will be made during the legal proceedings surrounding a divorce or separation. A prenup cannot make any decisions about how parents will divide or share custody of their children, and it cannot reduce or eliminate either parent’s obligation to pay child support.

• Illegal activities or obligations: Provisions in a prenuptial agreement must comply with state laws. Any terms that require spouses to engage in illegal activities or attempt to circumvent legal obligations cannot be included, and they could potentially cause a prenup to be unenforceable.

Contact Our DuPage County Prenuptial Agreement Attorneys

Navigating the complexities of prenuptial agreements can be challenging, and understanding how the terms of a prenup may affect a divorce is not always easy. If you are planning to create a prenup before getting married, Farooqi & Husain Law Office can help you make sure your rights will be protected. We will advise you on what terms may be included, and we will help you draft an agreement that will meet your needs. Contact our Oakbrook Terrace prenup lawyers today at 630-909-9114 to set up a consultation and learn more about how we can help you create a valid, enforceable agreement.